2013 C L C 1297
[Election Tribunal Balochistan]
Before Muhammad Hashim Khan Kakar and Naeem Akhtar Afghan, JJ
Mir HAMAYUN AZIZ KURD and another ----Appellants
Versus
PROVINCIAL ELECTION COMMISSIONER, BALOCHISTAN and another ----
Respondents
Election Appeals Nos.95 and 96 of 2013, decided on 17th April, 2013.
(a) Constitution of Pakistan ---
----Art. 62 ---Qualifications of membership of Majlis -e-Shoora ---Object and scope ---Persons,
desiring to engage themselves in the process of law making for the country, must themselves be
possessed with high qualities of personal character and moral values ---Legislator, who indulges
in unfair means in earning or procuring his educational documents cannot be termed to be
sagacious, righteous or ameen.
Muddasar Qayyum Nahra v Ch. Bilal Ijaz, 2011 SCMR 80; Civil Miscellaneous
Application No.1712 of 2013 in Civil Appeal No.191 -L and 409 of 2010; Malik Iqbal Ahmad
Langrial v. Jamshed Alam PLD 2013 SC 179 and Obaidullah v Senator Mir Muhammad Ali
Rind PLD 20 12 Balochistan 1 rel.
(b) Representation of the People Act (LXXXV of 1976) ---
----Ss. 14(5), 78(3)(d), 82 & 99 ---Constitution of Pakistan, Arts.62 & 63 ---Nomination papers ---
Scrutiny --- Disqualification --- Corrupt practice ---False statement ---Fake edu cational degree ---
Acquittal from criminal court ---Appellant was aggrieved of rejection of his nomination papers by
Returning Officer ---Plea raised by appellant was that he had been acquitted by criminal court in
the case of holding fake educational degree ---Validity ---Merely because appellant secured
acquittal from criminal court, would not mean that he had become graduate ---Criminal court had
no power to grant degree or determine whether degree was to be recognized in Pakistan; it was
only recognized insti tution, i.e. Higher Education Commission, which could determine validity
or otherwise of a degree ---Any person might have attended college or university, which was not
recognized by Higher Education Commission, and in such circumstances, such person could not
state that paper in his possession was a 'graduation' degree in Pakistan ---To hold otherwise
would grant criminal courts jurisdiction to determine matter of recognition of degrees, affiliation
of colleges/universities, equivalency or otherwise of `degr ee'---Such were the matters in respect
of which criminal courts had no jurisdiction nor they had necessary expertise ---Appellant by
stating that 'degree' was a degree that was recognized in Pakistan made "false statement" or
submitted "false or incorrect d eclaration" in respect of his "educational qualifications" as
stipulated in section 78 (3) (d) of Representation of the People Act, 1976, by making/submitting
false declaration in respect of his educational qualifications, and the same amounted to corrupt
practice, for which penalty had been provided in S.82 of Representation of the People Act, 1976
and further the offence was cognizable under S.94 of Representation of the People Act, 1976 ---
As determination of Higher Education Commission with regard to val idity of degree of appellant
stood the appellant was guilty of corrupt practice, therefore, in spite of his acquittal, he was not
eligible to participate in elections ---Appeal was dismissed in circumstances.
Muhammad Rizwan Gill v. Nadia Aziz 2010 PLD SC 828 and Nawabzada Iftikhar
Ahmed v. Chief Election Commissioner PLD 2010 SC 817 ref.
Syed Ayaz Zahoor for Appellants.
Muhammad Haroon, Law Officer, Provincial Election Commission, Balochistan, Quetta
for Respondents.
Date of hearing: 10th April, 2013.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. --- The forthcoming General Elections
2013 are scheduled to be held on 11th May, 2013. The appellant Mir Hamayun Aziz Kurd has
filed his nomination papers for contesting election to the Provincial as well as National
Assembly from the constituencies PB -31-Kachhi -II and NA -267 Kachhi/Jhal Magsi.
2. This order shall dispose of Election Appeals Nos.95 and 96 of 2013, filed by the same
appellant involving common points of law.
3. The appellant has ass ailed the legality of orders both dated 2nd April, 2013 (the
"impugned orders"), whereby the Returning Officers of NA -267 Kachhi/Jhal Magsi and PB -31
Kachhi -lI (the "Returning Officers") rejected his nomination papers on account of his conviction
in Compla int No.2 of 2012, under section 78(3)(D) R/W 82 of the Representation of the People
Act, 1976 (the "Act of 1976") and sections 199, 200 and 471 of the Pakistan Penal Code, 1860
(P.P.C.), filed by the Deputy Election Commissioner, Naseerabad at Dera Murad J amali.
4. The relevant facts for disposal of the instant election appeals appear to be that the
Election Commission of Pakistan (ECP) initiated action against all such parliamentarians, who
were accused of corrupt practices; of committing forgery and of using, as genuine, documents,
which they knew or at least had reasons to believe to be forged.
5. The appellant contested the General Elections 2008 for the seat of National Assembly
from Constituency NA -267 Bolan -cum-Jhal Magsi on the strength of his de gree, allegedly,
issued by Eire International University. The law on the subject applicable at the relevant time is
contained in Article 8 -A of the Conduct of General Election Order, 2002 and clause (cc) of
subsection (1) of section 99 of the Act of 1976. The former reads as under: ---
"8A. Educational qualification for a member of Majlis -e-Shoora (Parliament) and a Provincial
Assembly. --- Notwithstanding anything contained in the Constitution of Islamic Republic of
Pakistan, 1973, the Senate (Election) Ac t, 1975 (LI of 1975), the Representation of the People
Act, 1976 (LXXXV of 1976), or any other law for the time being in force, a person shall not be
qualified to be elected or chosen as a member of Majlis -e-Shoora (Parliament) or a Provincial
Assembly unl ess he is at least a Graduate possessing a bachelor degree in any discipline or any
degree recognized as equivalent by the University Grants Commission under the University
Grants Commission Act, 1974 (XXIII of 1974) or any other law for the time being in force."
6. Through Ordinance No.XXXVI of 2002 dated 31st July, 2002 subsection (cc) to section
99(1) was inserted in the Act of 1976. The main section deals with qualifications and
disqualifications and it provides that a person shall not be qualified to be elected or chosen as a
member of an Assembly unless ---
"99(1)(cc) he is at least a Graduate, possesses a bachelor's degree in any discipline or any degree
recognized as equivalent thereto by the University Grants Commission under the University
Grant s Commission Act, 1974 (XXIII of 1974), or any other law for the time being in force."
7. The appellant at the time of filing of nomination papers to contest the election for the seat
of National Assembly NA -267 Bolan -cum-Jhal Magsi, in the General Elect ions held in 2008, in
order to substantiate that he holds BA degree to become eligible to contest the election, produced
degree of BBA, purported to have been issued by the Eire International University.
Subsequently, he was declared as a Returned Candidat e from the said constituency and was
given the portfolio of Federal Minister Livestock. It would also be relevant to mention here that
the appellant, while submitting his nomination papers, declaring on oath that he was a graduate
and qualified under Artic le 62 and was not subject to any disqualification as provided under
Article 63 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution") to
become a candidate for the seat of National Assembly.
8. It may be noted that the Hon'ble Supreme Court of Pakistan in a case of "Muhammad
Rizwan Gill v. Nadia Aziz" 2010 PLD Supreme Court 828, directed the ECP for initiating action
against all such parliamentarians, who were accused of commission of corrupt practices; of
committing forgery an d of using, as genuine, documents which they knew or at least had reason
to believe to be forged. In this backdrop, the matter was referred to the Higher Education
Commission (HEC) of Pakistan and degree of the appellant was found "invalid", as the Institu te
i.e. Eire International University was not found on the database of the Council for Higher
Education Accreditation (CHEA) and, accordingly, the HEC informed the ECP regarding the
status of the appellant's degree vide its letter dated 5th August, 2010. H owever, despite specific
directions, no concrete steps were taken against those Parliamentarians, who were found guilty
of malpractices.
9. That, subsequently, in view of the order dated 28th March, 2013, passed in C.M.As.
Nos.1535 and 1536 of 2013 in C. As. Nos.191 -L and 409 of 2010 by Hon'ble Supreme Court of
Pakistan, the cases of Parliamentarians, found guilty of corrupt practices, were taken up by the
ECP and, after a thorough inquiry and providing full opportunity of hearing to the parties
concerned, the appellant was also found guilty of corrupt practices and the ECP by means of
order dated 25th June, 2012, directed the Provincial Election Commissioner, Balochistan, for
filing a complaint under subsection (2) of section 94 of the Act of 1976 before t he concerned
court i.e. Sessions Judge, Sibi. It may be added that, after conclusion of the trial, the learned
Sessions Judge, Sibi, convicted and sentenced the appellant under section 82 of the Act of 1976
to suffer one (1) year rigourous imprisonment (R. I.) and to pay a fine of Rs.5000/ - (Rupees five
thousand only), or in default whereof to further undergo one (1) month simple imprisonment
(S.I.), however, the said conviction and sentence awarded to the appellant were set aside by the
learned Single Judge of the High Court of Balochistan, Bench at Sibi vide short order dated 5th
April, 2013, followed by a detailed order dated 8th April, 2013.
10. Syed Ayaz Zahoor, learned counsel for the appellant, contended that the degree of the
appellant was neither b ogus nor fake as has been observed by the learned Single Judge of the
High Court, as such, the impugned orders, being contrary to law and facts, are liable to be set
aside. He further contended that since the appellant has been acquitted of the charge, the refore,
under such circumstances, the orders of rejection of nomination papers of the appellant are not
only illegal, but also bad in the eyes of law. He prayed that the nomination papers of the
appellants may be accepted and his name may be included in th e lists of validly nominated
candidates for the seats of National Assembly and Provincial Assembly concerned.
11. A person, who offers himself for an election to the seat of National or a Provincial
Assembly represents the people of his own constituency and is required to fulfil the
qualifications as laid down under Article 62 of the Constitution and should not suffer from any
disqualification as envisaged under Article 63 of the Constitution. The appellant, while
submitting his nomination papers in Form -I under Rule 3 of the Representation of the People
(Conduct of Election) Rules, 1977 (the "Rules of 1977"), declared on oath the following: ---
"1. I, the above mentioned candidate, hereby declare on oath that; ---
(1) I have consented to the above nomin ation and that I fulfil the qualifications specified in
Article 62 of the Constitution and I am not subject to any of the disqualifications specified in
Article 63 of the Constitution or any other law for the time being in force for being elected as a
memb er of the National Assembly/ Provincial Assembly."
Similarly, under section 12(2) of the Act of 1976, every nomination filed by a candidate shall
accompany the following declaration: ---
"(a) a declaration that he has consented to the nomination and tha t he fulfils the qualifications
specified in Article 62 and is not subject to any of the disqualifications specified in Article 63 or
any other law for the time being in force for being elected as member."
12. When the appellant had filed nomination pape rs for elections graduation was a prescribed
requirement and compliance was required to be made with section 99(1)(cc) of the Act of 1976.
However, after the said provision was omitted, all those participating in the forthcoming
elections need not be gradu ates and can take part, provided they had not earlier submitted a false
and incorrect declaration while presenting Nomination Form. The Nomination Form is verified
on solemn declaration by the candidate. Accordingly, if the appellant is permitted to take p art in
the forthcoming elections, it would mean that the false/incorrect declaration earlier submitted by
him has been condoned or is of no consequence and no sanctity attaches to the solemn
declaration made by a candidate.
13. It may be relevant to ment ion that the Hon'ble Supreme Court, while highlighting the
importance, dignity and sanctity of the Parliament in the case of "Nawabzada Iftikhar Ahmed v.
Chief Election Commissioner" PLD 2010 SC 817, observed as under: ---
"14. The Parliament of any count ry is one of its noblest, honourable and important institutions
making not only the policies and the laws for the nation but in fact shaping and carving its very
destiny. And here is a man who being constitutionally and legally debarred from being its
memb er, managed to sneak into it by making a false statement on oath and by using bogus, fake
and forged documents polluting the piety of this pious body. His said conduct demonstrates not
only his callous contempt for the basic norms of honesty, integrity and even for his own oath but
also undermines the sanctity, the dignity and the majesty of the said august House. He is guilty,
inter alia, of impersonation ---posing to be what he was not i.e. a graduate. He is also guilty of
having been a party to the making of false documents and then dishonestly using them for his
benefit knowing them to be false. He is further guilty of cheating ---cheating not only his own
constituents but the nation at large."
14. It is neither disputed, nor disputable that the degree p ossessed by the appellant,
purportedly, issued by the Eire International University, is not equivalent to the graduation as
held by the HEC. The same is not only invalid being issued by a non -recognized institution, but
also seems to be forged and fictitio us, for the simple reason that as per publication/advertisement
made in daily newspaper 'Dawn', Karachi, available on record, the 'Lloyds School of Business
and Fashions', where the appellant claimed to have studied, was shown to be affiliated with the
'Frederick Taylor University U.S.A', whereas the degree of Bachelor of Business Administration
in Marketing, produced at the time of submitting nomination papers by the appellant, has been
issued in favour of the appellant by the Eire International University , which, obviously, manifest
the fact that according to the appellant's own showing, the said school was never affiliated with
Eire International University. It would also be suffice to add here that the degree in question was
found not equivalent to gradu ation being invalid by the HEC vide its letter dated 5th August,
2010. HEC, to augment its contention, also provided a copy of print out of the search result from
the website of CHEA, stating that no institution by the name and style of Eire International
University was available on the website.
15. The important question, which requires to be answered, is as to whether this Tribunal is
empowered to declare the appellant, being imposter, to be non -righteous, not sagacious and
honest or an ameen. The answe r is, admittedly, in affirmative, as Article 62(1)(f) of the
Constitution furnishes a complete rejoinder, which speaks as under: ---
"62. Qualifications for membership of Majlis -e-Shoora (Parliament). --- (1) A person shall not
be qualified to be elected or chosen as a member of Majlis -e-Shoora (Parliament) unless ---
(f) he is sagacious, righteous, non -profligate, honest and ameen, there being no declaration
to the contrary by a court of law; "
16. The above Article of the Constitution clearly demonstr ates that persons, desiring to
engage themselves in the process of law making for the country, must themselves be possessed
with high qualities of personal character and moral values. A legislator, who indulges in unfair
means in earning, or procuring his educational documents cannot be termed to be sagacious,
righteous or ameen. While holding this view, we are fortified from the judgment of Hon'ble
Supreme Court in case of "Muddasar Qayyum Nahra v Ch. Bilal Ijaz", 2011 SCMR 80, wherein
it was held as under :---
22. The concepts projected in using all the above terminology is not difficult to understand. It
demonstrates a keen desire of the Constitution that persons desiring to engage themselves in the
process of law making for the country must themselves b e possessed with High qualities of
personal character and moral values. A legislator who indulges into unfair means in earning or
procuring his educational documents cannot be termed to be possessing the required standards of
high personal characteristics mentioned in clause (f) of Article 62 of the Constitution of Islamic
Republic of Pakistan, 1973. Members of the National or Provincial Assemblies on their
successful election have been further obliged to take oath as incorporated in the third schedule of
the Constitution, with necessary condition of undertaking the performance of the duties and
functions honestly in accordance with Constitution. Elected members are further likely to be
entrusted with the other high and onerous offices of the Prime Minister, Federal Ministers,
Speaker of the National and Provincial Assemblies, Deputy Speakers of the National and
Provincial Assemblies and Chief Ministers of the Provinces. The swearing of solemn oath from
such holders of public offices is also prescribed in the Constitution requiring similar
performances of duties and functions with honesty and also to be faithful to be Constitution and
the law. A person who indulges into using unfair means in procuring his educational
qualifications and is also found guilty by the Disciplinary Committee, which is the only authority
competent to inquire into the matters of such allegations against candidates appearing in the
examination of the said University, does not deserve to claim to be an honest, righteous or
Ameen person s o that he be assigned the high responsibilities of performing national functions of
running the affairs of the country. The spirit with which the words sagacious, righteous, non -
profligate, honest and Ameen have been used by the Constitution of Islamic Rep ublic of
Pakistan, 1973 for the eligibility of the candidates contesting the elections of Members of
National or Provincial Assembly cannot be allowed to be frustrated if persons who secure their
educational documents through unfair means and are found gui lty of such a condemnable act by
file competent authority are allowed to be given entry into the doors of National or Provincial
Assemblies of our country. The respondent No.1 not only is found guilty of a dishonest or
cheatful involvement into the use of unfair means in procuring his B.A/degree/results from the
University of Punjab but also made deliberately false statement before this Tribunal as well when
P.W. was suggested that he was admittedly not holder of the B.A. degree from the University of
the P unjab whereas in his written statement Exh.P.12, the respondent where he was respondent
No.4 in the said writ petition categorically took up the plea and claimed to be holder of a valid
B.A. degree from the University of the Punjab. He is thus not worthy o f credence and cannot be
allowed to be entrusted with State responsibilities of Law Making; to be in -charge of the
National Exchequer or be eligible to represent the people of Pakistan."
17. Similarly, the Hon'ble apex court in Civil Miscellaneous Applic ation No.1712 of 2013 in
Civil Appeal No.191 -L and 409 of 2010 has observed as under: ---
"5. Notwithstanding whether the condition of being a graduate or having a degree equal to
the requisite academic skill was not available subsequent to the General El ection 2008, and the
judgment in the case of Muhammad Nasir Mahmood and others vs. Federation of Pakistan
through Secretary M/o Law (PLD 2009 SC 107) yet if a candidate has made a declaration in the
column meant for academic qualification and declared hims elf to be a graduate but subsequently,
it is found that he was not a graduate then he would equally be liable to face the consequences
under Articles 62 and 63 of the Constitution or the other relevant provisions of the P.P.C. It is
further to be observed that once there is a disqualification, it is always a disqualification;
therefore, while making declaration in the nomination papers, a candidate must provide, a crystal
clear statement about his credentials and antecedents. There is no scope of making or providing
information, which is not correct, because he is one of the persons whom the electorate of a
constituency, which may be having a strength of 50 thousand, are going to elect their
representative. Therefore, whatever, he possesses in terms of acade mic qualification, bank
credits and taxes etc. he shall have to declare each and every thing required for the qualification
to contest the election.
9. We have no objection on the decision of ECP, falling under categories A & B, but as
categories C to H are concerned, we may observe that for declaring a person to be disqualified,
no period of limitation, as pointed out, would be relevant because such disqualification, was
suffered at the time when he filed the nomination papers by making a declaration, wh ile having a
fake degree in his hand, therefore, in such cases, no time period can be prescribed."
18. Likewise, while describing the powers of the Tribunal in the cases of false declaration,
qualification and disqualification, the Hon'ble Supreme Court of Pakistan in the case of "Malik
Iqbal Ahmad Langrial v. Jamshed Alam" PLD 2013 Supreme Court 179, has observed as under: -
--
"10. Learned counsel for the appellant has vehemently argued that prior to 18th Constitutional
Amendment, in terms of Article 62 (1)(f) of the Constitution, the Court was not empowered to
declare any person to be non -sagacious, not righteous or honest or an ameen, as such the
observations of the Election Tribunal that the appellant was not only to contest the election in the
year 20 08, but was also not righteous or honest or an ameen person, was sustainable. In this
regard it is to be noted that at the time of filing of nomination papers to contest the election in the
year 2002, the appellant produced fake and forged education certif icates and the Election
Tribunal had declared him to be an impostor vide judgment dated 26 -12-2002. It is to be noted
that Article 62(1)(f), as it stood prior to 18th Constitutional Amendment, provides that a person
shall not be qualified to be elected or chosen as a Member of Majlis -e-Shoora (Parliament)
unless he is sagacious, righteous, non -profligate, honest and ameen. It is clear from the plain
reading of the said Article that there is no restriction upon the Court/Tribunal to declare any
person to be not sagacious, righteous or ameen. Admittedly the appellant used fake documents
not only in the year 2002 but also in the year 2008 and also made false declaration making him
liable to criminal action under certain provisions of P.P.C. In the case of Mudda sar Qayyum
Nahra v. Ch. Bilal Ijaz (2011 SCMR 80) this Court had upheld the findings of Election Tribunal,
Punjab whereby it was held that a person who indulges into using unfair means in procuring his
educational qualifications does not deserve to claim t o be an honest, righteous or Ameen person
so that he be assigned the high responsibilities of performing national functions of running the
affairs of the country. The spirit with which the words sagacious, righteous, non -profligate,
honest and Ameen have b een used by the Constitution of Islamic Republic of Pakistan, 1973 for
the eligibility of the candidates contesting the elections of Members National or Provincial
Assembly cannot be allowed to be frustrated if persons who secure their educational document s
through unfair means and are found guilty of such a condemnable act by the competent authority
are allowed to be given entry into the doors of National or Provincial Assemblies of our country.
The respondent (therein) is thus not worthy of credence and c annot be allowed to be entrusted
with State responsibilities of Law Making; to be incharge of the National Exchequer or be
eligible to represent the people of Pakistan."
19. We are also conscious of the fact that the courts should be cautious, while inte rpreting
Articles 62 and 63 of the Constitution, because sometimes it may be used for ulterior motives. In
this regard, a reference can be made to the Balochistan observed as case of "Obaidullah v.
Senator Mir Muhammad Ali Rind", PLD 2012 Balochistan 1, wh erein a division bench of the
High Court of Balochistan, Quetta under: ---
"15. Lies fall into two distinct categories. Those uttered to deceive and to gain an advantage,
in the present case to be able to contest elections, and innocent lies without malic e or any
intended deception. In this case Mr. Rind in reply to the question in the Nomination Form, "Have
you ever been indicted in criminal proceedings or convicted for the violation of any law
(excluding minor traffic violations)?" responded by stating " No" which was an admittedly false
statement and made on "Declaration and Oath. Legal and Constitutional consequences follow
from making such a false declaration on oath and are clearly not permissible in Islam and thus
Mr. Rind would run foul of Article 62 (1)(d) as well.
16. The Legislature in its wisdom has incorporated Article 62(1)(d) and it is therefore the
duty of the courts to interpret and apply it. We are however cognizant that the same may be
misused for ulterior motives, for instance a Muslim ma y not be saying his prayers or fasting and
it be alleged that he stands disqualified under Article 62(1)(d). However, the Creator in His
Infinite Wisdom and Mercy has created a distinction between those disobediences which do not
adversely affect others an d those that do, and thus haqooq -ul-Allah and haqooq -ul-ibad. The
observances of ritual finds favour with our Lord and may also determine whether an individual
gains entry into Paradise, however, "There is no compulsion in religion" (Surah al -Baqarah,
2:256). Even the Messengers of Allah were given the task of simply conveying the message
(Surah al -Imran, 3:20 and Surah al -Mai'dah, 5:99) and it was left for the people to believe or not
or abide by the prescriptions of the Faith or not, but the people do not have the liberty to resort to
crimes, including murder, theft, misappropriation of entrusted property et cetera, which
adversely affect the rights of others. It is also reasonable to presume that the Legislature only
wanted to restrict entry of criminals (thieves, embezzlers et cetera) into the portals of Parliament
and not those who were not observing the rituals of their Faith; the probability of the former
category would not detract from them being good law makers, ministers, chief ministers or even
Prime Minister, but the nation cannot be entrusted into the hands of the latter category.
Unfortunately, Mr. Rind by his criminal conduct has himself ensured that the doors of Parliament
are closed to him."
20. Reverting to the last and prime contention of the learned counsel for the appellant that
after earning acquittal, the appellant cannot be debarred from contesting the forthcoming
election. We are of the opinion that as far as the proceedings, initiated by the ECP, were
conducted properly after seeking explanation of the delinquent appellant and a detailed inquiry
was conducted and, subsequent thereto, the appellant was de -notified by the competent authority,
as his degree was found invalid. The contention of the learned counsel, that after earning
acqu ittal, a finding to the contrary by the Returning Officers would not be proper and cannot be
permitted to stand, is without any substance. It is true that the most rigorous liability is the
liability under the criminal law, as a criminal trial proceeds upo n principles safeguarding the
accused, and the most searching scrutiny of the facts. However, it is equally true that a mere
acquittal by a criminal court, does not necessarily absolve the concerned individual from
liability, on the same facts, in discipli nary proceedings or election matters. An acquittal can be
secured because the prosecution has not been able to discharge the burden of proof beyond
reasonable doubt. An acquittal could also be obtained, because some necessary ingredients of the
offence hav e not been proved. However, the administrative authorities could nevertheless punish
the delinquent individual. It would be anomalous to restrain an administrative authority while
inflicting punishment upon the delinquent individual after his acquittal fro m a criminal court of
law, because both the proceedings are quite distinct in nature and in spite of acquittal, the
delinquent individual can be punished by the administrative authorities, while differing from the
findings of a criminal court. There is a c atena of cases, where the superior courts have held that
where there had been a regular trial, the judgment of the criminal court was not necessarily
conclusive as regards administrative or disciplinary action. The prosecution might fail for some
technical reasons.
21. There is distinction between a conclusion of guilt or innocence in the exercise of a
criminal jurisdiction and the cognizance of the matters by an administrative or other authority.
The question arises, as to whether the findings of a criminal court are bi nding upon an
administrative authority or as in the instant case on the ECP, which is a constitutional body
(Article 218) and has been assigned the duty to conduct elections "honestly, justly, fairly and in
accordance with law, and that corrupt practices a re guarded against". Merely because the
appellant secured an acquittal from a criminal court would not mean that he would become a
graduate. A criminal court has no power to grant degrees or determine whether a degree is to be
recognized in Pakistan. It is only the recognized institutions, in the instant case, the HEC, which
can determine the validity or otherwise of a degree. A person may have attended a college or
university, which is not recognized by HEC, and in such circumstances, he cannot state that the
paper in his possession is a 'graduation' degree in Pakistan. To hold otherwise would be to grant
criminal courts jurisdiction to determine matter of recognition of degrees, affiliation of
colleges/universities, equivalency or otherwise of the 'degree' . These are matters in respect of
which the criminal courts have no jurisdiction nor do they have the necessary expertise.
22. While considering the case of the appellant on the touchstone of above criteria, we are of
the considered opinion that the judg ment of acquittal of the Hon'ble High Court of Balochistan,
Bench at Sibi would not mean that the appellant is a graduate or holds a graduation degree or its
equivalent as accepted in Pakistan. The corrupt practice has been defined under section 78 of the
Act of 1976, which reads as under: ---
"78. Corrupt practice. --- A person is guilty of corrupt practice if he ---
(1) contravenes the provisions of section 49;
(2) is guilty of bribery, personation or undue influence;
(3) makes or publishes a false s tatement or submits false or incorrect declaration in any
particular material ---
(a) concerning the personal character of a candidate or any of his relation calculated to
adversely affect the election of such candidate or for the purpose of promoting or procuring the
election of another candidate, unless he proves that he had reasonable grounds for believing, and
did believe, the statement to be true;
(b) relating to the symbol of a candidate whether or not such symbol has been allocated to
such candida te;
(c) regarding the withdrawal of a candidate; or
(d) in respect of his educational qualifications, assets and liabilities, or any liability with
regard to payment of loans or adherence to party affiliation specified in subsection (2) of section
12.
(4) calls upon or persuades any person to vote, or to refrain from voting, for any candidate on
the ground that he belongs to a particular religion, province, community, race, caste, bradari, sect
or tribe;
(5) knowingly, in order to support or oppose a candidate, lends, employs, hires, borrows or
uses any vehicle or vessel for the purposes of conveying to or from the polling station any elector
except himself and members of his immediate family; or
(6) causes or attempts to cause any person present a nd waiting to vote at the polling station to
depart without voting."
23. The appellant by stating that the 'degree' was a degree that was recognized in Pakistan
made "false statement" or submitted "false or incorrect declaration" in respect of his "educational
qualifications" as stipulated in subsection (3) of section 78 and, thus, the case of appellant falls
within the ambit of clause (d) of subsection (3) of section 78 of the Act of 1976 by
making/submitting false declaration in respect of his edu cational qualifications, which amounts
to a corrupt practice, for which penalty is provided in section 82 ibid and further the offence is
made cognizable under section 94 ibid. As the determination by the HEC with regard to validity
of the appellant's 'deg ree' stands the appellant is guilty of corrupt practices, therefore, in spite of
acquittal, he is not eligible to participate in the forthcoming elections.
For the discussion above, the appeals are dismissed.
MH/49/Q Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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